Another Defense-Favorable Righthaven Ruling–Righthaven v. Choudhry

This lawsuit involves the “Vdara Death-Ray” image published in the Las Vegas Review-Journal, which has been the basis of numerous Righthaven lawsuits. In this case, Choudhry may be a particularly poor defendant. He argues that the image appeared on his site as an in-line link (permissible under Perfect 10 v. Amazon) and via an automated process that lacked volition. The court rejects Choudhry’s motions for judgment on the pleadings and summary judgment on those points, saying that the judge wants to understand the technology better before ruling on it.

1) The defendant’s use is transformative but it’s not clear if the use was commercial or not

2) The nature of the work could go either way

3) Republishing the image at 30% size could go either way

4) As a matter of law, the defendant’s use doesn’t harm Righthaven’s market

The latter point is a biggie. The fourth fair use factor is often considered the most important, and the court is treating it as presumptively weighing against Righthaven in all cases. The court is basically doing the same with the transformative nature of the works. If those two considerations automatically weigh against Righthaven in every case, Righthaven will have a tough time defeating any fair use defense.

The court rejects Righthaven’s demand for the defendant’s domain name. This follows from Righthaven v. DiBiase, 2011 WL 1458778 (D Nev April 15, 2011), issued by a different Nevada judge, which said: “Congress has never expressly granted plaintiffs in copyright infringement cases the right to seize control over the defendant’s website domain. Therefore, the Court finds that Righthaven’s request for such relief fails as a matter of law and is dismissed.”

Finally, the judge preserves Choudhry’s counterclaim, which allows Choudhry to keep the lawsuit going even if Righthaven dismisses it and sets up Choudhry to potentially go on the offensive.

All told, although this ruling doesn’t break much new ground, it consolidates defendants’ gains on three fronts:

* the fair use factors weighing in favor of defendants as a matter of law